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Capital Area Private Defender Services – NITA Public Service Program

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On September 19 – 21, NITA teamed up with Capital Area Private Defender Services (CAPDS) for a public service trial skills program in Austin, TX. CAPDS is a joint venture non-profit organization dedicated to assisting indigent clients facing criminal charges. This public service program trained 36 attorneys and was led by NITA Program Director Michael Dale, who has taught at over 100 NITA programs throughout the years.

Deputy Director of CAPDS, Bradley Hargis, worked closely with NITA to put the program into motion and stated that CAPDS was very grateful to NITA for making the training possible.

Likewise, one attendee stated, “Great course! One of the faculty described it as Spring Training and I agree. I could do this once a year. The faculty were outstanding. Nobody was there to show off. They were honestly there to teach.”

Similarly, another attendee stated, “It was a great course and I learned a lot. It was really helpful practicing the skills in small groups. I always found the commentary/feedback from the faculty really helpful and important. I feel like I really improved my skills and learned the practical notes that were taught.”

 

Get To Know NITA’s 2017 100 Hour Club Part 2

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Here at the National Institute for Trial Advocacy we are fortunate enough to have over 800 volunteer faculty each year. We would like to take a moment and introduce to you those faculty who have given us over 100 hours of their time in 2017 to help train advocates all over the globe. In part two of this series we highlight three more of these faculty members. If you missed part one, find it here.

MICHAEL WASHINGTON
San Diego County Superior Court
Oceanside, CA
Volunteered 177 hours in 2017, teaching at several programs including; Building Trial Skills: Los Angeles, our 2017 National Session, and Building Trial Skills: San Diego.

How did you first become involved with NITA?
I was first invited to teach at a NITA program by my former law school professor and trial team coach, Janeen Kerper. She believed that I might have something to share as a young trial attorney. I am forever in her debt.

Why do you teach for NITA?
I teach for NITA because I think with my experience I can help others be more effective and more ethical advocates. Teaching allows me to connect with old friends while making new ones. Teaching for NITA also made me a much better attorney, and now a better judge, by exposing me to individuals that I probably would have not otherwise had an opportunity to meet.

Is there a particular NITA program that’s dearest to your heart?
This is tough for me because I’ve had the chance to teach at so many amazing NITA programs. If I had to pick one it would be Building Trial Skills: Southern California at Loyola Law School. This is the program that I have taught most often, and this year marked my twenty-year anniversary teaching there. I started as a wide-eyed young attorney struggling to apply the NITA method consistently to becoming the Program Director in 2017. Of course, I am forever grateful to the previous Program Director, the amazing Professor Gary Williams.

What do you hope to bring to the legal profession?
Joy. The legal profession so stressful and we often lose sight that it can enjoyable. I was fortunate enough to always have a legal job that brought me joy, and I want others to learn how they can have fun while dealing with the stress of learning new skills.

CHRISTOPHER WHITTEN
Superior Court
Phoenix, AZ
Volunteered 136 hours in 2017, teaching at several programs including; Building Trial Skills: Los Angeles, our 2017 National Session, and Building Trial Skills: San Diego.

How did you first become involved with NITA?
In 2003, one of my favorite law school professors, Allen Snyder, asked me to help with the Pacific Regional (San Diego) Trial Program. I had been doing trial advocacy training on a much smaller (and much lower quality) basis in Arizona for about twelve years. That first faculty meeting hooked me. There were so many great trial lawyers and advocacy teachers. I was in awe a bit. In 2006, about the same time I was appointed to the bench, I started to get more invitations to help in other programs. For some reason, people seem to think judges intrinsically know how to be effective advocates (mostly wrong, or we would still be advocating). Since 2006, it has been a rollercoaster of amazing experiences, people, and opportunities to serve. I’ve made a lot of good friends and learned from some great teachers over the last fifteen years.

Why do you teach for NITA?
When I was a kid, my father helped run an orphanage in La Paz, Mexico. A big part of my upbringing, and probably anyone else’s who was Jesuit-schooled, was “women and men for others.” I’ve always gotten far, far more out of volunteering than I’ve given. That’s especially true with NITA, where I constantly get the good feeling that accompanies helping that lightbulb pop over a young lawyer’s head when she figures out a skill, but also where I get to learn from world-class faculty for free. Over the last decade and a half, I’ve been able to hear lectures and feedback from living legends of advocacy training. I only wish I could put some of the golden nuggets I’ve heard into practice myself . . . maybe someday.

Oh, and the faculty dinners. NITA people are generally fun people.

Is there a particular NITA program that’s dearest to your heart?
There are three. San Diego is where it all started for me. Now, every year, I get to work with one of those living legends, Mary Jo Barr, to put on the best trial program we can there. Dom Gianna began inviting me to New Orleans a decade ago, and has yet to figure out how little I add. Those programs are special for a number of reasons, but mostly for the people Dom and Lisa Marcy invite every year―a real familial vibe. The National Program is the cream of the crop. The level of talent on the faculty, top to bottom, is always so impressive. Karen Steinhauser and Michael Washington will shepherd it well in the future. I always pick up three or four things to steal while I’m there and use at other programs as if they were my own.

What do you hope to bring to the legal profession?
Without getting too corny, we really are privileged to work in a noble and important profession. Along with physicians, people entrust to lawyers, and trial lawyers in particular, to some of the biggest, scariest problems in their lives―literally life-and-death or bet-the-company issues. It’s truly humbling, but can also be stressful. Sometimes that stress makes us treat each other poorly. It would be great if, at the end of my career, I could say that I helped move the needle towards a more courteous bar. But really, like a physician, my goal is “first, to do no harm.”

ROBERT MCGAHEY
Denver District Court
Denver, CO
Volunteered 181 hours in 2017, teaching at several programs including; Deposition Skills: Rocky Mountain, our 2017 National Session, and Building Trial Skills: Rocky Mountain.

How did you first become involved with NITA?
It’s far enough back that I can’t even remember the exact year, but sometime in the ’80s, Mark Caldwell [NITA Program Development and Resource Director] called me up and asked me to be a last-minute replacement for the Rocky Mountain Regional. Someone (and I can’t remember who) had recommended me. I agreed to do it and found the experience terrific. NITA became an important part of my life from then on.

Why do you teach for NITA?
The smart-aleck answer is: “Self-defense. The better I can train lawyers, the easier my job is.” The bigger answer is that I am devoted to trial advocacy and its value to people. I wanted to be a trial lawyer from age nine, which was when Perry Mason started on TV. I thought that was the coolest thing I ever saw, and I wanted to do it. I’ve been fortunate to be able to spend my adult life involved in the legal system, first as a lawyer, then as a judge, and I’ve been able to teach advocacy as well. The value of “advocacy” is profound. The word “advocate” comes from the Latin “ad-vo-cate,” which means “to be called to speak for.” How cool is that? Since I care about advocacy, I want to see it done properly, which is why I teach. Maudlin though it sounds, the people I teach will be practicing law after I’m dead. It’s important to me to know that the advocates who come after me will be doing the job right.

Is there a particular NITA program that’s dearest to your heart?
Any public service program, any one at all. Lawyers at public programs and custom programs are great to work with, too, but they frequently have resources supporting them that public service lawyers lack, including the chance to attend NITA programs. Since public service lawyers frequently represent underserved segments of society, being able to help those lawyers get better is very, very rewarding. And given how quickly public service lawyers can be thrown into court, the improvement they make on Friday in Nita City translates immediately to better advocacy for their clients in court on Monday!

What do you hope to bring to the legal profession?
Experience, concern, a dedication to justice, and a passion for advocacy done right.

Academy of Adoption & Assisted Reproduction – NITA Public Service Program

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On September 14 – 15, NITA had the opportunity to work with the Academy of Adoption & Assisted Reproduction (AAAA), for a public service program held at The Brown Palace in Denver, CO. This experiential program trained 120 attorneys by NITA Program Director JC Lore who did a series of lectures, demonstrations, and workshops for the attendees on skills such as direct/cross examination, case analysis, and taking/defending a deposition.

Attorney and AAAA Past-President, Colleen Quinn, worked closely with NITA to put the program into motion. At the conclusion, Quinn stated, “The NITA training provided by JC Lore was fantastic! In my 30 years as a trial attorney it was the best I have ever received. JC was entertaining, energetic and thoroughly knowledgeable. He delivered a day and a half of spot-on deposition and trial taking techniques that included a lot of trainee participation and  hands-on activities. In taking my first deposition after the NITA training, I felt so much more confident in my skill set. Thank you NITA and JC!”

A huge thank you to JC Lore for such a great program in this experiential format as NITA continues our training mission.

Monthly Theme: Storytelling Part Two

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Engaging the YouTube Attention Span

Written by NITA Program Director and guest blogger, David Mann

Ask yourself this: “When I see a video pop up on my social media feed – if the title has caught my attention and I’ve clicked play – how long do I give it before I click it off?”

I’ve asked this question to seminar audiences across the country, and the answer always seems to be “about ten seconds.” If it has engaged you, you’ll generally let it run to about 30 seconds before getting back to work. But if it still has your attention past 30 seconds, then past 60 seconds, there’s a really good chance you’ll find the time to watch that entire 13:42 video about something completely unrelated to anything you were thinking about prior to that moment.

That’s what I call the YouTube attention span, and we’re all subject to it now.

We expect – we demand – that whatever is being presented to us grabs our attention instantly and holds it. We “audition” the video clip, the speaker, the commercial…whatever it is. And yet when we present in court (and in most other professions that involve speaking) we tend to slog through a long background and history before getting to the main event. We load up that precious first few moments with technical detail, jargon, and abstract language. For some reason, we seem to believe cultural habits don’t come into the room when there are “serious” matters at hand. But nothing could be further from the truth.

How you organize your story is absolutely critical to it being engaging. What’s often frustrating for logic-minded attorneys is the fact that live delivery of a story needs to be decidedly non-logical in its organization. In other words, there’s no need to educate the fact finder about the history or background before getting to the point. You can do that later. Build your opening for engagement, not logic. Our brains don’t mind; we can be presented with well-designed, out-of-order story fragments and our brains will sort it all out into a clear picture. But the key is to make it well-designed. Have you watched Better Call Saul? Like its predecessor, Breaking Bad, part of its appeal is that you wonder what’s going on before it is made clear. That’s well-designed storytelling.

An opening statement is the purest storytelling you’ll do in court. The impressions made during the opening will last for the entire trial. When I’ve worked with attorneys on constructing and writing opening narratives for trial, I direct them to spend a lot of time on the overall construction: build the opening with the mindset of a performer, not a lecturer. That means paying attention to the pace and density of the material, not just the logic.

Here’s a quick overview of a shape I believe works well for getting a jury engaged and keeping them with you. Generally, a 20-25 minute opening can break down like this:

PART ONE: Establish the Players and Events – 5 minutes

  • Introduce characters so it is simple to know who to root for and against
  • Give a simple, streamlined version of the story
  • Introduce simple, common sense principle or theme
  • Establish simple version of the basic rules that were broken

PART TWO: Fill in the detail – 10-15 minutes

  • Give a longer, more detailed version of the story
  • Provide a more detailed background
  • Explain the details of the rules that were broken
  • Characterize opponent’s case

PART THREE: Make the Jury a Character – 5 minutes

  • Let the jury know they can make it right
  • Explain the details of the jury instructions
  • Give a context for damages

This is clearly a very general outline, and of course each case has its own unique features that will dictate the shape of the opening to a certain extent.

The goal of Part One is simply to get the jury on board. They do not need to understand everything at this point – they need to be interested and curious in understanding everything as it comes up later. That is a different goal. Five minutes in speaking time is a little less than two written pages, assuming it’s 1.5 space in 12-point font. It’s really easy to look at those two blank pages and fill them up with everything you know about the case…but don’t do that. Imagine a jury with their fingers poised over the “stop” button on the video if they’re not interested after two paragraphs. Then get them to the next two paragraphs…and so on.

The goal of Part Two is to fill in all the detail they’re now hungry for. So do that, but still keep it economical. It isn’t necessary to try your entire case in the opening; just get the jury acclimated to the characters, events, and crucial details that will emerge in the rest of the trial. Again, it’s about making them interested and curious so they’ll see the rest of the trial through the correct lens.

Part Three is simply to articulate the purpose of their role and to empower them with the tools they’ll need to play that role.

We joke about the shrinking modern attention span caused by social media’s influence. To an extent, it’s true. But keep in mind that people always find time to pay attention for a long time if they’re intrigued. By using well-designed narrative structure, you can keep them intrigued on your side all the way to the verdict you want.


If you’d like a more in-depth look at story construction and delivery, take a look at my October 16 NITA webcast or join me for my intensive 2-day NITA program, “Make Your Case Story Engaging.” Participants use a real case file, which we build into an engaging narrative opening statement in two days. See the NITA website for details, dates set for April 18 – 19, 2019 in Washington, DC.

Impeaching The Adverse Expert

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Written by NITA guest blogger, Prof. Jules Epstein

Rarely if ever will the cross-examining attorney know more about a subject than the expert witness being confronted.  Indeed, that is why discovery rules mandate pre-trial disclosure of expert reports – “They allow attorneys, not experts in the fields at issue, to prepare intelligently for trial and to solicit the views of other experts…”  Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010).  So a strategy of beating the expert at her own game is not a sure path to success; it may bore or otherwise lose the jury; and it risks letting the expert explain.

Nonetheless, an expert’s claims can be checked, challenged and undercut in a number of ways.  Beyond the impeachment methods available for all witnesses – inconsistent statements, dishonest character, contrary information [with experts, often via a learned treatise] – there are expert-specific lines of inquiry.  What is essential is that opposing counsel develop the list of potential attacks, test them pre-trial to ensure their applicability, and then organize the cross-examination to maximize their utility.

Let’s begin with the challenge to credentials.  Because the standard for qualifying an expert is exceptionally lax – according to one court, it is “whether the witness has  any reasonable pretension to specialized knowledge  on the subject under investigation” – the likelihood of exclusion is low.  But the proponent of the expert has engaged in permissible bolstering, and the qualifications voir dire offers the chance to take the witness down a notch or two in the eyes of jurors.

In the qualifications arena, the following subjects are key to any cross-examiner’s checklist:

  • Limited practical experience
  • Missing credentials (g., a lack of Board certification)
  • Inflated credentials

This last point warrants amplification.  An expert may be a member, or even an official, of a “professional” organization – but investigation may reveal that membership comes from an application and a fee, and not based on any performance standard or testing.  For an extreme example, see The Emperor of Junk Science Forensics Has Died,  (last visited September 23, 2018).

Related to the problem of credentials, at least as to the weight of the expert’s testimony, is that of bias.  Bias comes in many forms, some going to the witness’ credentials and others to the shaping of the actual opinion(s), with admittedly some overlap.  In the bias area, the following subjects warrant exploration:

  • Fees (assuming the fee paid to the opponent’s expert is disproportionate to that paid for the party’s own expert)
  • The relationship of this witness to counsel, as when this witness has been used repeatedly by the same counsel or law firm
  • What Stephen Lubet has denominated “positional bias,” the loyalty of the witness to a particular side or the witness’ willingness to only find one [the same] conclusion over a range of cases (See Lubet, MODERN TRIAL ADVOCACY, §8.6.4.3.)

There are at least two other forms of subconscious biasing that must be evaluated, although developing a cross on either may be difficult.   The first arises merely by virtue of who hired the expert, as research has shown that there is a phenomenon of “adversarial bias” where experts begin to align their expectations and conclusions dependent on which party hired them.  As elaborated in one research paper, “working for one side in an adversarial case causes some experts’ opinions to drift toward the party retaining their services, even on ostensibly objective instruments and procedures…”  Adversarial Allegiance Among Expert Witnesses, (last visited September 23, 2018).

And the second?  It arises from “domain irrelevant information,” and occurs when an expert is given information extraneous to the task but impactful on the ‘lens’ through which the expert views the evidence.  Telling a fingerprint expert that the suspect confessed offers no useful information in how to compare two prints but has been shown to affect judgment in cases where the prints are ambiguous or unclear.  See, e.g. Dror et al, Cognitive Bias and Its Impact on Expert Witnesses and the Court, (last visited September 23, 2018).  This may be shown by demonstrating what the expert was asked [or “told”] to look for; and then have the expert concede that certain information provided is not part of the normal decision-making process in the particular discipline.

Making the opposing expert yours is a critical part of any cross.  The opposing expert may be willing to validate your expert’s

  • credentials
  • methodology
  • sources of data
  • conclusions at least in part

Making the expert one’s own is desirable and should precede any attack.   But attack is often the primary focus of the cross-examination.  A preliminary topic may be to show the limits of the discipline, even where it has survived a challenge under Frye, Daubert, or 702 principles.  Here, questioning may track the admissibility criteria of Daubert.  Questioning may highlight any of the following:

  • Testability (or the lack thereof)
  • Peer Review/Publication (again, the lack thereof)
  • Error Rate (here, the lack of one, or a problematic error rate)
  • Existence of Standards (again, the lack of standards from examiner to examiner)
  • General Acceptance (again, the lack thereof or substantial challenges to the theory or method)

Beyond an attack on the discipline are several potential ones on the expert’s approach and conclusions.  One such attack is premised on assumptions.  Where the adverse expert’s conclusions are premised on certain assumptions, a skillful cross can begin with an agreement that the quality of the opinion depends on the correctness of the assumptions.  Here, the list of potential cross-examination points includes:

  • the danger for experts of relying on assumptions
  • assumptions made in this case
  • the concession that if the assumed facts are wrong then the opinion might be wrong as well

Where a pre-trial deposition has occurred, counsel may already have secured the concession that under a different factual scenario – i.e.¸ where the assumptions are different – the conclusion changes and becomes one favorable to the cross-examiner.

Another area for inquiry may be dubbed the “more” category.  Here, the cross-examination focuses on the limits imposed on the expert, whether due to finances, time or the inadequacy of the materials to be reviewed or the testing options available.  Questions may focus on:

  • More data would have been better because…
  • More tests would have been better because

Finally, the expert may be pressed on what the evidence does not show.  By way of example, a fingerprint expert will have to concede, in most cases, that how, why or when a latent print was left at a crime scene is unknown.  Such concessions may dovetail with the expert having to agree that the evidence could have been left in a manner consistent with the cross-examiner’s theory of the case.

Will every one of these challenges be available in a particular case?  The answer is almost certainly “no.”  But unless each case is screened against these criteria, the cross-examiner may be missing essential grounds for undercutting the opposing expert.

 

Professor Jules Epstein is Director of Advocacy Programs at Temple University in Philadelphia, PA.

 

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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